suring the confidentiality of requests
Description
The ICC Statute contains many references to the protection of confidential information. The Court has a general duty to ensure the confidentiality of documents and information within its possession except as required for the purpose of requests for State co-operation (article 93 (8)(a)). Article 87 (3) provides that the "requested State shall keep confidential a request for co-operation and any documents supporting the request, except to the extent that the disclosure is necessary for the execution of the request." Thus, States must keep all requests from the ICC for co-operation confidential, and only reveal to the appropriate authorities (for example, police in order to execute a warrant of arrest) the amount of information they need in order to carry out the request. The reason for these clauses is that the Prosecutor or the Court will need, as much as possible, to keep confidential ICC investigations, indictments and requests for assistance in order to prevent accused persons from fleeing, witnesses from being threatened or killed, and evidence from disappearing or being destroyed. Therefore, a State's role in keeping such requests confidential will directly influence the effectiveness of the Court.
Under article 87 (4), a State Party may also be required to protect certain information in its possession or control, where measures are necessary to ensure the safety or physical or psychological well-being of victims, potential witnesses, and their families. These measures will apply to the way that the State provides and handles the information, and may also involve keeping certain information confidential. Under article 68 (6), a State may make an application to the Court for it to take measures for the protection of confidential or sensitive information, and the protection of State servants or agents.
Under article 93 (8)(b), a State receiving a request for co-operation may transmit documents and information to the Prosecutor on a confidential basis, and the Prosecutor may use that information solely for the purpose of generating new evidence. Subparagraph (c) provides that the State may subsequently consent to the disclosure of the documents.
Obligations
(a) States are obliged to keep confidential requests for co-operation, and any documents supporting these requests.
(b) If the Court makes a request pursuant to article 87 (4) for certain handling of information, a State must comply, in order to protect victims, witnesses, and their families.
Implementation
States must adopt procedures for keeping requests for co-operation, and all supporting documents, confidential. This obligation of confidentiality might be designated in legislation, or might be left to be delineated by the executive. Whether this obligation is implemented by legislation or by a decision of the executive, the State must ensure that the channel chosen for receiving requests allows for confidentiality.
In addition, States need to implement procedures and possibly laws to enable them to provide and handle information in a manner that protects the safety and well-being of victims, witnesses, and their families. These procedures are most likely to be regulated through the executive and not through legislation. They could be implemented so as to apply to both requests from the Court to protect information, and requests to the Court by the State to protect information and certain individuals. However, a State must take into account its national privacy legislation when establishing these procedures, and will need to determine if amendments are required.
Provision for future amendments
Description
Any new national procedures or laws should be flexible enough to allow for changes from t
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